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Google Book Search Settlement: Two Articles to Read

We posted our initial thoughts about the proposed Google Book Search settlement when it was announced in October 2008. Since that time, the official notice to members of the class has been approved by the court (available online here). This is still probably the best introduction to the 130+ page settlement for those who own a copyright in a book and are wondering what this settlement will mean for his or her copyrights.

But most of us are probably more interested in what this proposed settlement will mean for the future of books, generally. And make no mistake, that is what's at stake here: the relationship between future generations and all the books ever written by previous generations. For those who are concerned about this question, there are two recent articles that you should read.

First, there is a probing, philosophical piece written by Robert Darnton, director of the Harvard University Library, in the February 12, 2009 edition of the New York Review of Books.

Looking back over the course of digitization from the 1990s, we now can see that we missed a great opportunity. Action by Congress and the Library of Congress or a grand alliance of research libraries supported by a coalition of foundations could have done the job at a feasible cost and designed it in a manner that would have put the public interest first. By spreading the cost in various ways—a rental based on the amount of use of a database or a budget line in the National Endowment for the Humanities or the Library of Congress—we could have provided authors and publishers with a legitimate income, while maintaining an open access repository or one in which access was based on reasonable fees. We could have created a National Digital Library—the twenty-first-century equivalent of the Library of Alexandria. It is too late now. Not only have we failed to realize that possibility, but, even worse, we are allowing a question of public policy—the control of access to information—to be determined by private lawsuit.

Second, there is a very practical "how can the settlement be improved" article written by New York Law School Professor (and former EFF legal intern) James Grimmelmann (the article is due to be published in the Journal of Internet Law later this year, but the draft is already posted, as is the fashion among law professors these days). He suggests specific improvements to the settlement to address the following shortcomings (in his view) of the settlement:

The Registry poses an antitrust threat. The new Book Rights Registry will be a new collecting society representing the interests of authors and publishers. This kind of collective action poses an obvious antitrust risk: what if the Registry becomes the instrument of a cartel to fix the price of books? To keep the Registry from overreaching, we’ll need more checks than the settlement currently contains.

Google poses an antitrust threat. By virtue of the settlement, Google will have the book search market and the download market for orphan works largely to itself. The structure of a class action settlement, in itself, is a highly effective barrier to entry. We’ll therefore need similar checks on Google’s actions to keep it from acting anticompetitively in book markets.

Consumers need protection. The settlement as it stands is actually remarkably good at ensuring minimum standards to benefit libraries, institutions, and consumers. But in some areas, such as price discrimination and privacy—the settlement leaves the door open for
Google to behave oppressively. We’ll need to close that door.

Public goods should be widely available. Just by providing the search and download services and by processing payments, Google and the Registry will assemble some immensely useful databases about book copyright information. These databases are classic public goods, and neither Google nor the Registry will need exclusive rights over them as an incentive. We’ll need to make sure that those databases are made available to the public.

Transparency and accountability matter. If Google becomes a chokepoint for getting books to the public, there’s a risk that it could could secretly censor. Google, of course, doesn’t want to distribute books it strongly disagrees with (or fears legal liability from). These
two goals can be reconciled. We’ll need to make sure that when Google chooses not to make books available, it leaves open suitable alternative channels for getting them to the public.

Whether you agree with Prof. Grimmelmann or not, his analysis digs into the details and presents a incisive look at many of the chief issues raised by the proposed settlement.

As for my part, I'm still digesting all of the analysis and perspectives, but increasingly suspect that the question of digitizing and providing public access to all the world's books is too important to be left to a privately negotiated settlement implemented in a class action lawsuit.